SAN FRANCISCO (CN) – The 9th Circuit refused to stop the deportation of an immigrant who allegedly faced torture in El Salvador, because the Board of Immigration Appeals had decided that his three DUI offenses were “particularly serious crimes.”
None of Hernan Ismael Delgado’s three felony DUI convictions was an aggravated felony. One involved an injury accident, and two resulted in prison terms of less than two years.
The law states that any convicted felon sentenced to more than five years in jail “shall be considered to have committed a particularly serious crime.”
However, the court ruled 2-1 that the attorney general has the discretion to decide that an immigrant’s individual crime is “particularly serious,” even if it’s not classified as an aggravated felony.
“The statute does not limit the definition of ‘particularly serious’ crimes to aggravated felonies,” Judge William Canby wrote. “Nor does it expressly require the attorney general, when considering whether a crime that is not categorically barred is ‘particularly serious,’ to consider only aggravated felonies where the sentence imposed was less than five years.”
The majority also determined that it wasn’t likely that Delgado would be tortured if returned to El Salvador. He had claimed his parents were victims of the civil rights violations that took place in El Salvador in the late 1970s and early 1980s. Canby said the conditions in El Salvador have “improved significantly” since Delgado left the country more than 20 years ago, and “there is no longer evidence of politically motivated violence, killings, or disappearances.”
In dissent, Judge Marsha Berzon called the majority’s opinion “seriously off-track.” She maintained that only aggravated felonies can be “particularly serious crimes.”